TROY K. GREEN, PETITIONER V. UNITED STATES OF AMERICA
No. 90-5729
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 2a-7a) is not
reported, but the judgment is noted at 901 F.2d 1131 (Table).
JURISDICTION
The judgment of the court of appeals was entered on May 3, 1990. A
petition for rehearing was denied on June 18, 1990. The petition for
a writ of certiorari was filed on September 14, 1990. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether petitioner was seized within the meaning of the Fourth
Amendment when plainclothes officers pulled up behind the parked car
in which he was sitting, got out, and began to approach him with their
badges out and hands on their holstered guns.
2. Whether evidence discarded by petitioner as the police pursued
his speeding car, and evidence discovered subsequent to his arrest,
should have been suppressed as the product of illegal police conduct.
STATEMENT
Following a jury trial in the United States District Court for the
District of Columbia, petitioner was convicted on one count of
possession of 50 grams or more of cocaine with the intent to
distribute it, in violation of 21 U.S.C. 841(a)(1). /1/ He was
sentenced to 151 months' imprisonment, to be followed by a five-year
term of supervised release. The court of appeals affirmed. Pet. App.
2a-7a.
1. The evidence adduced at the suppression hearing established that
on the evening of March 1, 1989, two plainclothes police officers on
patrol in Washington, D.C., had stopped their unmarked car to speak
with an acquaintance when they saw petitioner and Curtis Wilson emerge
from a nearby apartment complex. Wilson was carrying an opaque
plastic bag. When they were about 14 feet away from the police car,
one of the two men bent down and looked into the car. Wilson stuffed
the plastic bag tightly up under his arm, and both men turned around
quickly and retreated into the building. Pet. App. 5a, 9a-12a; I
Supp. Tr. 2-9. /2/ Shortly afterwards, Officer Reynolds saw the two
men peeking around the corner of the apartment complex. The officers
started driving down the street, and from his rear view mirror,
Officer Reynolds saw the men leave the building, look toward the
police car, and walk in the opposite direction. Wilson was still
carrying the plastic bag. The men disappeared around the corner.
Pet. App. 5a, 12a; I Supp. Tr. 9-10.
Officer Reynolds then backed his car down the block and eventually
pulled up behind a parked car in which petitioner and Wilson were
seated. The lights of the parked car were off and the motor was
running. The officers stopped their car and started to get out.
Officer Reynolds, who had his badge in one hand and his other hand on
his holstered gun, said "Police." Before the officers could approach
the other car, however, the two men drove off at a high rate of speed,
still with the car's lights off. Pet. App. 6a, 12a-13a; I Supp. Tr.
11-12.
The officers pursued the car for several blocks, as it continued to
drive very fast and on the wrong side of the street, running stop
signs and a red light. Although it was dark, the car's lights were
never turned on. During the chase, Officer Reynolds saw petitioner
throw two plastic bags from the driver's side of the car. Pet. App.
13a; I Supp. Tr. 12-13, 56-57. Another police vehicle finally
stopped petitioner's car, and petitioner and Wilson were ordered out
of the car. Officer Reynolds returned to the area where he had seen
the two bags discarded, found that they contained crack cocaine, and
radioed to the officers who were detaining petitioner and Wilson to
arrest them for possession of cocaine. Pet. App. 14a-15a; I Supp.
Tr. 15-16, 57-58. Later analysis established that the bags contained
more than 160 grams of cocaine base. A search of the car petitioner
had been driving revealed a measuring cup, two walkie-talkies, and the
plastic bag Wilson had been carrying. In addition, $420 was found in
a search of petitioner's person. Pet. App. 15a-16a; I Supp. Tr.
16-18.
The evidence at trial was substantially the same as that elicited
at the suppression hearing. Gov't C.A. Brief 8-11. Petitioner called
as his only witness his father, Kenneth Green, who testified that he
had been playing cards on the afternoon of March, 1, 1989, when his
son asked him for some money. The elder Green said he gave his son
$15 to spend, and he said that in order to avoid losing too much money
at the card game, he asked his son to take another $450 home with him.
III Trial Tr. 28-29.
2. The district court denied petitioner's motion to suppress,
finding that no Fourth Amendment seizure took place when the officers
pulled up behind petitioner's car, got out, and identified themselves
as police officers. Therefore, the court ruled, the officers needed
neither probable cause nor reasonable suspicion to approach the two
men. Pet. App. 19a. The court went on to hold that once petitioner
and Wilson sped off, driving recklessly, the officers had probable
cause to arrest them for the traffic violations. The discovery of the
abandoned plastic bags of cocaine gave the officers probable cause to
arrest the men for possession of drugs and to search them and their
car. Pet. App. 20a-21a. Alternatively, the district court found that
the officers had reasonable suspicion to stop the two men after they
observed their furtive behavior. Pet. App. 21a-23a.
3. On appeal, petitioner argued that a reasonable person in his
position would have believed that the men who pulled up behind his car
were not police officers, but "street thugs lying in wait to rob (him
and his companion)," so that he and Wilson did not feel free to stay.
Pet. App. 7a. Therefore, he argued, the officers' conduct constituted
a Fourth Amendment seizure. The court of appeals was unpersuaded,
however. Affirming the district court's "no seizure" ruling, the
court of appeals found that "Officer Reynolds' testimony at the
suppression hearing establishes * * * that (petitioner) knew that the
men approaching him were police officers." Thus, a reasonable person
would not have felt threatened by the police officers; the officers'
act of getting out of their car to approach petitioner's car therefore
was not a "seizure" within the meaning of the Fourth Amendment. Ibid.
ARGUMENT
1. Petitioner renews his claim (Pet. 17-48) that an unlawful
seizure occurred when the plainclothes officers stopped their car
behind his and began to approach his car. He argues, as he did in the
court of appeals, that a reasonable person in his position would have
feared that he was being aggressively confronted by armed street
thugs, not by plainclothes police officers. The conduct of the
officers, he argues, was so threatening that a reasonable person would
not have believed he was free to stay. For that reason, petitioner
argues, the police conduct in this case constituted a Fourth Amendment
seizure. The court of appeals correctly found that there was no merit
to this contention.
A person is seized for purposes of the Fourth Amendment when an
officer "has in some way restrained (his) liberty." Terry v. Ohio, 392
U.S. 1, 19 n.16 (1968). Accord Brower v. County of Inyo, 109 S. Ct.
1378, 1380 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985) (there
is no seizure unless the officer has "restrain(ed) the freedom of a
person to walk away"). In making such determinations, courts employ
an objective test: a seizure occurs "only if, in view of all of the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave." Michigan v. Chesternut, 486
U.S. 567, 573 (1988), quoting United States v. Mendenhall, 446 U.S.
544, 554 (1980) (opinion of Stewart, J.). Accord Florida v. Royer,
460 U.S. 491, 502 (1983) (plurality opinion).
Applying that test to the facts of this case, the courts below
correctly concluded that nothing about the officers' conduct was so
objectively intimidating or coercive that petitioner and Wilson could
reasonably have concluded that they were being seized, or, as
petitioner puts it, not "free to stay." As the district court noted,
the officers had not ordered the men to stop, to pull over, or to get
out of their car. The officers had simply stopped behind petitioner's
stationary car and had begun to get out and approach petitioner's car
when petitioner and Wilson suddenly sped away. Pet. App. 19a. The
police car did not block the path of petitioner's car, the officers
did not use sirens or flashing lights to indicate that the car's
occupants should stop and submit to police authority, nor did they
display any weapons. In these circumstances, a reasonable person
would not have concluded that his freedom of movement was being
restrained. Michigan v. Chesternut, 486 U.S. at 575-576; United
States v. Adegbite, 846 F.2d 834, 837-838 (2d Cir. 1988), cert.
denied, 110 S. Ct. 370 (1989); United States v. Castellanos, 731 F.2d
979, 982-984 (D.C. Cir. 1984).
The sole basis for petitioner's claim that the court of appeals
erred in finding no seizure is his argument that the actions of the
police officers would have led a reasonable person to mistake them for
street thugs about to asault petitioner and his companion. Thus, he
claims, the conduct of the police was sufficiently threatening to
constitute a Fourth Amendment seizure. The courts below, however,
rejected the factual premise of petitioner's argument by concluding
that the evidence supported a finding that petitioner knew the men who
were approaching him were police officers. Pet. App. 7a, 23a.
Officer Reynolds testified that he patrolled that area frequently,
had stopped many cars and made numerous arrests, and that he was well
known to be a police officer. I Supp. Tr. 25. He also testified that
he thought he recognized petitioner as someone he had stopped on a
previous occasion. Id. at 25-26. In addition, Reynolds testified
that his presence in a car with a white man in that particular
neighborhood, at night, would have made anyone in the area suspect
them of being police officers. Id. at 43-44. Officer Reynolds was
quite sure that petitioner recognized him as a police officer once the
two men looked into the police car and then retreated quickly into the
building they had just left. Id. at 44-45. There is thus ample
support for the court of appeals' conclusion that a reasonable person
in petitioner's position (and having petitioner's knowledge that the
men approaching him were police officers) would not have felt
threatened by the officers' actions. Petitioner's contention that the
court of appeals erred in drawing that conclusion is a fact-bound
question that is not appropriate for this Court's review. United
States v. Reliable Transfer Co., Inc., 421 U.S. 397, 401 n.2 (1975);
Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967).
Even if a seizure did occur when the officers pulled up behind
petitioner's car and began to get out, the district court found that
any seizure that occurred was supported by reasonable suspicion.
First, the officers saw the men approach their car from an apartment
building, bend down and look into their car from a few feet away, and
then immediately turn and go back inside the building, while one of
the men apparently tried to conceal a bag he was carrying. The
officers then saw the same two men peering around the corner of the
building, looking toward the officers' car, and then walking in the
opposite direction from the officers' car. Finally, the officers
found the men sitting in a parked car with the engine running but the
lights turned off. These observations, taken together, provided the
officers with an objective, articulable basis for suspecting that some
criminal activity might be afoot. See United States v. Sokolow, 109
S. Ct. 1581, 1585 (1989); United States v. Cortez, 449 U.S. 411,
417-418 (1981).
Contrary to petitioner's argument (Pet. 40-48), it is not
significant that the two officers may have had different opinions
about exactly what kind of criminal conduct was going on, nor does it
matter that they did not actually observe criminal behavior. The
concepts of probable cause and reasonable suspicion are based not on
certainties, but on probabilities. United States v. Cortez, 449 U.S.
at 418. It is precisely because reasonable suspicion connotes a
substantial degree of uncertainty that a brief detention for futher
investigation is deemed necessary and appropriate. Terry v. Ohio, 392
U.S. at 22-23, 26-27.
2. Petitioner further argues (Pet. 48-59) that his flight and
abandonment of the drugs were caused by the unlawful actions of the
police, so that the evidence discovered as a result of those actions
should be suppressed as the fruits of an illegal detention. But
because it is clear that the police did nothing unlawful, this claim
is obviously without merit. As the district court observed,
"(d)efendants were within their right to refuse * * * to talk to the
police officers if they didn't want to, but what they did, instead,
was to take off with reckless driving which certainly then gave the
officers the right to pursue." Pet. App. 20a. Because the police
committed no unlawfu action either in approaching petitioner in his
car or in pursuing him when he sped off and drove recklessly through
city streets, their discovery of both the evidence he abandoned and
that found in searches incident to his subsequent arrest was entirely
lawful and not the product of any illegal police conduct. See
Michigan v. Chesternut, 486 U.S. at 569, 574-576; Abel v. United
States, 362 U.S. 217, 241 (1960); Hester v. United States, 265 U.S.
57, 58 (1924).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
KATHLEEN A. FELTON
Attorney
DECEMBER 1990
/1/ Petitioner was tried jointly with Curtis Wilson. The district
court granted Wilson's motion for a judgment of acquittal.
/2/ "I Supp. Tr." refers to the transcript of the suppression
hearing, held on April 25, 1989.